Karnataka High Court
Oriental Insurance Co.Ltd., vs Mallikarjun S/O. Awappa Hariwal on 12 February, 2018
Bench: S.Sujatha, John Michael Cunha
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7TH DAY OF FEBRUARY, 2018
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
M.F.A. NO.25829/2011 (MV)
C/W.
M.F.A. NO.20406/2012
M.F.A. NO.25829/2011 :
BETWEEN :
ORIENTAL INSURANCE CO.LTD.,
ENKAY COMPLEX,KESHWAPUR ROAD,
HUBLI,(POLICY ISSUED AT BIDARI COMPLEX,
I FLOOR, S.S.FRONT ROAD, BIJAPUR) POLICY
YEAR & NO. 20081213, OFFICE CODE 422902,
VALID FROM 20-04-2007 TO 19-04-2008
REPD.BY ITS DIVISIONAL MANAGER.
... APPELLANT
(BY SMT. PREETI SHASHANK HEGDE, ADV.)
AND :
1. MALLIKARJUN S/O. AWAPPA HARIWAL
AGE: 66 YRS, OCC: RETIRED,
R/O. BIJAPUR, NOW RESIDING AT SHIVAGIRI,
DHARWAD
2. UMADEVI S. HIREMATH,
AGE: MAJOR, OWNER OF GOODS CARRYING
COMMERCIAL VEHICLE (MINI GOODS TUM TUM
BEARING NO.KA 28/7700)
R/O. DESAI CHAWL, TORI ROAD, BIJAPUR.
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... RESPONDENTS
(BY SRI A R PATIL, ADV. FOR R1;
R2 - SERVICE HELD SUFFICIENT)
THIS MFA IS FILED U/SEC.173(1) OF M.V. ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DTD:19-10-2011 PASSED
IN MVC. NO.234/2009 ON THE FILE OF THE II-ADDL. SENIOR
CIVIL JUDGE AND MEMBER, ADDL. MACT, DHARWAD, AWARDING
THE COMPENSATION OF RS.2,07,695/- WITH INTEREST AT THE
RATE OF 6% P.A., FROM THE DATE OF PETITION TILL
REALISATION.
M.F.A. NO.20406/2012 :
BETWEEN :
MALLIKARJUN S/O. AWAPPA HARIWAL
AGE: 66 YEARS, OCC: RETIRED TEACHER
R/O. BIJAPUR, NOW AT RESIDING
SHIVAGIRI, DHARWAD.
... APPELLANT
(BY SRI : A R PATIL, ADV.)
AND :
1. MAHADEVI S. HIREMATH
AGE: MAJOR, OCC: OWNER OF GOODS CARRYING
COMMERCIAL VEHICLE,
R/O. DESAI CHAWL, SHASTRI NAGAR, BEHIND
JANNAT MASJID, TORI ROAD, BIJAPUR.
2. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO.LTD.,
ENKAY COMPLEX, KESHWAPUR ROAD, HUBLI,
POLICY ISSUED AT BIDARI COMPLEX,
I FLOOR, S.S. FRONT ROAD, BIJAPUR.
... RESPONDENTS
(BY SMT. PREETI SHASHANK, HEGDE FOR SRI SHRIKANTH
J. BHAT, ADV. ; R1 - NOTICE DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF THE M.V.ACT 1988,
AGAINST THE JUDGEMENT AND AWARD DATED:19.10.2011,
PASSED IN MVC NO.234/2009 ON THE FILE OF THE II ADDL. SR.
CIVIL JUDGE AND AMACT., DHARWAD, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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THESE APPEALS COMING ON FOR HEARING THIS DAY,
S.SUJATHA J., DELIVERED THE FOLLOWING:
JUDGMENT
Insurance Company as well as claimant are in appeal challenging the judgment and order passed by the II Addl. Senior Civil Juge and A.M.A.C.T., Dharwad, (for short, 'Tribunal') in M.V.C. No.234/2009 whereby petition filed under Section 166 of the Motor Vehicles Act, 1988 (for short, 'the Act') by the claimant is partly allowed holding that the petitioner/claimant is entitled for Rs.2,07,695/- with interest at the rate of 6% p.a. from the date of petition till realization fastening the liability on the owner as well as the insurance company and directing the insurance company to deposit the compensation amount within 30 days from the date of the award.
2. The facts in brief are that claimant being the legal representative of the deceased Gangubai, the victim of the road traffic accident which occurred on 08.04.2008 filed petition under Section 166 of the Act seeking compensation alleging actionable negligence on the driver :4: of the mini goods tom tom vehicle bearing Reg. No.KA- 28/7700 (offending vehicle) duly insured with the insurance company - appellant in M.F.A. No.25829/2011. On service of summons, insurance company appeared and contested the claim. The defence taken by the insurer was the driver of the offending vehicle was authorized to drive light motor vehicle (LMV), whereas he was driving transport vehicle at the time of the accident. Hence, there being violation of the terms and conditions of the policy, no liability can be fastened on the insurance company and requires to be exonerated. Owner-respondent No.1 therein filed written statement contending that the offending vehicle was insured with the insurance company and had valid insurance policy at the time of the accident. Hence, liability to pay compensation, if any, has to be fixed on the insurance company. Based on the pleadings, Tribunal framed the issues. On appreciation of evidence on record, Tribunal arrived at a conclusion that the driver of the offending vehicle was qualified to drive LMV in terms of the driving licence possessed by him. The :5: offending vehicle in question being a transport vehicle i.e., Bajaj minidor GVW-1150 with seating capacity of one the policy has coverage to the third party. Hence, the petitioner is entitled for compensation only under the heads, loss of estate and medical expenditure and accordingly awarded compensation under these heads amounting to Rs.2,07,695/-. Being aggrieved by the same, claimant is in appeal challenging the impugned judgment and order seeking enhancement of compensation.
3. Learned counsel for the claimant submitted that the deceased was working as a Headmistress in Government Primary School, Mulawad, Taluk Bijapur, and she was earning a sum of Rs.18,577/- per month. The deceased/victim sustained grievous injuries in the accident in question, she was admitted at BLDE Hospital, Bijapur, as an inpatient and undergone multiple surgeries. Thereafter she was shifted to Dr. Joshi Hospital, Hubballi, where she succumbed to the injuries on 12.07.2008. The only ground on which the Tribunal :6: denied the compensation under the different heads including the loss of dependency is for the reason that the driver of the offending vehicle did not possess the required endorsement to drive the transport vehicle. Indeed it is not in dispute that the driver possessed valid and effective driving licence to drive the LMV. In the light of the judgment of the Hon'ble Apex Court in Mukund Dewangan Vs. Oriental Insurance Company Limited reported in AIR 2017 SC 3668, it is not mandatory for the driver possessing the licence to drive LMV to obtain an endorsement in order to drive a transport vehicle of that class. Hence, the claimant is entitled to compensation under the different heads apart from loss of estate and medical expenses. Thus, it is contended that the quantum of compensation awarded by the Tribunal is meager and contrary to the material evidence placed on record. Accordingly, he seeks for enhancement of compensation fixing the liability on the insurer.
4. Learned counsel has placed reliance on the following judgments :
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i. Puttamma & Ors. v. K.L.Narayana Reddy & Anr. [Civil Appeal No.10918/2013 (SLP (C) No.4639/2010)];
ii. National Insurance Company Limited v. Pranay Sethi and Ors. [SLP(C) No.25590/2014];
iii. M.F.A. No.20727/2010 C/w. M.F.A. No.20728/2010 & M.F.A. Crob. No.771/2010 (DD 08.12.2016);
iv. M.F.A. No.9661/2013 (DD 20.09.2017);
5. Learned counsel appearing for the insurer would fairly submit that in view of the latest judgment of the Hon'ble Apex Court in the case of Mukund Dewangan supra, transport endorsement is not required to drive a mini goods vehicle (transport vehicle). However, it is submitted that there was no nexus between the accidental injuries and the death of the victim. As such, no liability can be fastened on the insurer to indemnify the owner since the accident occurred on 08.11.2008 and the victim died on 12.07.2008 moreover, post mortem report is not available on record.
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6. Nextly, it was argued that the deceased was working as the Head Mistress in Government Primary School, Mulwad village, Taluk Bijapur, and was aged about 58 years at the time of accident in terms of the material evidence placed on record. Hence, considering the age of the deceased, split multiplier has to be applied to determine the quantum of compensation. Learned counsel placed reliance on the judgment of this Court in M.F.A.No.101045/2014 and connected matters (DD 13.09.2017).
7. It was further argued that loss of estate has to be computed in terms of the judgment of this Court in A.Manavalagan Vs. A.Krishnamurthy [(2005) ACJ 992] as claimant is not entitled to loss of dependency.
8. Heard the learned counsel for the parties and perused the material on record.
9. As regards the arguments of the Insurer, inasmuch as no nexus between the accidental injuries and the death of the victim, it is clear that the factum of :9: accident in question is not in dispute. Exs.P.7 to Ex.P.10 viz., namely medical bills (prescription) (96), 128 medical bills, certificate of Mayur Nursing Home and death of certificate of the victim, suggest that there was nexus between the accidental injuries and the death of the victim. In terms of Ex.P.9, cause of death is shown as sudden cardiac arrest due to thromboermbolis and sepic shock of septic again which is due to prolonged clinic infection - multiple fractures, multiple operations of compound comminuted fracture sustained in the road traffic accident on 08.04.2008. Dr.Mahantesh, who has issued this certificate was examined as PW-2. In the evidence of PW-2, nothing positive is elicited from the Insurance Company to discard the testimony of the said doctor. PW-2 has reiterated the cause of death shown at Ex.P.9. It is also not in dispute that the victim was shifted for treatment at B.M.Patil, Medical College and Hospital, Bijapur, for the first aid treatment immediately after the accident on 08.04.2008, since the injuries were grievous in nature, she took medical treatment as an inpatient. : 10 : Again she was shifted to Fracture and Ortho Hospital PGI of Swasthiyog Prathisthan, Miraj and there she has taken treatment for a long period and underwent multiple surgeries for the injuries sustained in the accident. After discharge from the said hospital, she took treatment at Dharwad in Mayur Nursing Home, where PW-
2/Dr.Mahantesh I Hanchanal treated her as an outdoor patient. Finally, she was admitted at Dr.Joshi Hospital, Hubli with history of acute (L) chest pain and expired on 12.07.2008 at the said hospital. Exs.P.7 and 8, prescriptions and medical bills relating to the period 09.04.2008 to 25.06.2008 demonstrates that she was consistently under the medical treatment for accidental injuries sustained on 08.04.2008.
10. At this juncture, it is beneficial to refer to the co-ordinate bench judgment of this Court in M.F.A.No.11237/2012 (DD 11.12.2014) in the case of Sri Suresh Vs. Sri Hanumanthu and another whereby it is held that even in the absence of any Post Mortem report to substantiate the manner in which the death occurred, : 11 : nexus with the injuries and the cause of death would be determined on the basis of the material on record. In the said case, the accident occurred on 24.04.2010. The victim died on 14.08.2010. Ever since the accident, she had been under consistent medical treatment. Under such circumstances, it is held that Tribunal arriving at a decision that there is no nexus on the accidental injuries and the death cannot be accepted; the medical record being clear and cogent that she was under consistent medical treatment eversince the date of accident, it cannot be held that there was no nexus with the accidental injuries and the cause of death. Even in the absence of Post Mortem report in the present case, the medical records clearly speak that the victim was under consistent medical treatment from the date of the accident till her last breath. Hence, the argument of the learned counsel for the Insurance Company on this point deserves to be negated.
11. As regards the driver not possessing the endorsement to drive the transport vehicle, the issue is no : 12 : more res integra in view of the judgment of the Hon'ble Apex Court in the case of Mukund Dewangan supra, whereby the Hon'ble Apex Court has categorically held that endorsement is not necessary to drive a transport vehicle (same class) when the driver possessed valid and effective driving license to drive the light motor vehicle. Hence, the view of the Tribunal on this point is unsustainable. The claimant is entitled to compensation under the other heads also.
12. It is the argument of the learned counsel for the Insurance Company that the loss of estate has to be computed on the basis of the division bench ruling of this Court in A.Manavalagan Vs. A.Krishnamurthy reported in 2005 ACC 1. It is true that the victim was working as a Head Mistress at the time of the accident and death and was earning the salary. In such case, whether the claimant is entitled to loss of estate or loss of dependency is the question to be determined. It is beneficial to refer to the judgment in Manavalagan's case supra, whereby the : 13 : co-ordinate bench of this Court in paragraphs 20 (iv) and 20 (v) has held thus:
"20) iv) If the deceased is survived by an educated employed wife earning an amount almost equal to that of her husband and if each was maintaining a separate establishment, the question of 'loss of dependency' may not arise. Each will be spending from his/her earning towards his living and personal expenses. Even if both pool their income and spend from the common income pool, the position will be the same. In such a case the amount spent for personal and living expenses by each spouse from his/her income will be comparatively higher, that is three-fourth of his/her income. Each would be saving only the balance, that is one fourth (which may be pooled or maintained separately). If the saving is taken as one-fourth (that is 25%), the loss to the estate would be Rs. 2,250/- per month or Rs. 27,000/- per annum. By adopting the multiplier of 14, the loss to estate will be Rs. 3,78,000/-.
Note: The position would be different if the husband and wife, were both earning, and living together under a common roof, sharing the expenses. As stated in BURGESS v. FLORENCE NIGHTINGALE HOSPITAL (1955(1) Q.B. 349), 'when a husband and wife, with separate incomes are living together and sharing their expenses, and in consequence of that fact, their joint living expenses are less than twice the expenses of each one living separately, then each, by the fact of sharing, is conferring a benefit on the other'. This results in a higher savings, say, one-third of the income; In addition each : 14 : spouse loses the benefit of services rendered by the other in managing the household, which can be evaluated at say Rs. 1,000/- per month or Rs. 12,000/- per annum). In such a situation, the claimant (surviving spouse) will be entitled to compensation both under the head of loss of dependency (for loss of services rendered in managing the household) and loss to estate (savings to an extent of one-third of the income that is Rs. 3,000/- per month or Rs. 36,000/- per annum). Therefore, the loss of dependency would be 12000x14=1,68,000/- and loss to estate would be 36000x14=5,04,000/-. In all Rs. 6,72,000/- will be the compensation.
(v) If the deceased was a bachelor and the claimants are two non-dependent brothers/sisters aged 47 years and 45 years with independent income, the position would be different. As the deceased did not have a 'family', the tendency would be to spend more on oneself and the savings would be hardly 15%. If the saving is taken as 15% (Rs. 1350/- per month), the annual savings would be Rs. 16,200/- which would be the multiplicand. The multiplier will be 13 with reference to the age of the claimants and the loss of estate would be Rs. 2,10,600/- per annum. Though the quantum of savings will vary from person to person, there is a need to standardise the quantum of savings for determining the loss to estate (where the claimants are not dependants) in the absence of specific evidence to the contrary. The quantum of savings can be taken as one-third of the income of the deceased where the spouses are having a common establishment and one-fourth where the spouses are having independent establishments. The above will : 15 : apply where the family consists of non-dependant spouse/children/parents. Where the claimants are non- dependant brothers/sisters claiming on behalf of the estate, the savings can be taken as 15 % of the income. The above percentages one, of course, subject to any specific evidence to the contrary led by the claimants".
(emphasis supplied)
13. The quantum of savings can be taken as 1/3rd of the income of the deceased where the spouses are having a common establishment and where the spouses are having independent establishment. The evidence on record clearly establishes that the spouses had a common establishment. Hence, 1/3rd of the income of the deceased can be considered as the quantum of savings. Accordingly, loss of estate has to be determined applying the appropriate multiplier instead of loss of dependency.
14. Nextly, it was argued by the learned counsel for the Insurer that split multiplier has to be applied considering the age of the deceased. Indisputably, the deceased was aged about 58 years at the time of the accident. It is true that she had another two years of : 16 : service. But, the question would be whether split multiplier is applicable to the facts and circumstances of the case. To answer this question, it is worth referring to the judgments of the Hon'ble Apex Court and this Court holding the field.
15. In the case of Puttamma Vs. K.L.Narayana Reddy and another reported in AIR 2014 SC 706, the Hon'ble Apex Court while dealing with the split multiplier in paragraphs 32 and 34 has held thus:
"32. For determination compensation in motor accident claims under Section 166 this Court always followed multiplier method. As there were inconsistencies in selection of multiplier, this Court in Sarla Verma prepared a table for selection of multiplier based on age group of the deceased/victim. Act, 1988 does not envisage application of split multiplier.
34. We, therefore, hold that in absence of any specific reason and evidence on record the Tribunal or the Court should not apply split multiplier in routine course and should apply multiplier as per decision of this Court in the case of Sarla Verma (supra) as affirmed in the case of Reshma Kumari (supra)."
16. In the case of The New India Assurance Co., Ltd., Vs. Prithviraj and others in : 17 : M.F.A.No.20727/2010 and connected matters (DD 08.12.2016), the co-ordinate bench has held that for applying split multiplier method, reasons must be given. Without assigning any reasons, the compensation towards 'loss of dependency' cannot be determined by split multiplier. In that case, the Tribunal had applied the multiplier '11' for calculating the loss of dependency despite the fact that the deceased was working as teacher in a school and had only six years left for retirement. In the facts and circumstances of that case, it was held that compensation payable to the claimants needs to be recalculated as applicable of split multiplier method stands to reason in the circumstances where the deceased would have retired in future years, if he/she were not to die.
17. In the case of M/s.Reliance General Insurance Co., Ltd., Vs. Shri M.Jayalakshamamma and others, the division bench of this Court considering the judgment of the Hon'ble Apex Court in Puttamma's case supra, held that the Insurer in his pleadings has not : 18 : taken any plea regarding application of split multiplier or that the deceased lack potentiality to earn even after her superannuation. Nothing is suggested in the cross examination of the claimants/witnesses on that point nor the respondents have adduced any evidence in that regard. Therefore, there is no merit in the contention that the Tribunal ought to have applied the split multiplier in computing the loss of dependency.
18. In the case of Smt.Nirmala vs. Sri Asgar Pasha and another in M.F.A.No.101045/2014 and connected matters (DD 13.09.2017), the division bench of this Court accepting the view that for applying the split multiplier method, reasons must be given for adopting the split multiplier applied the same in the facts and circumstances of the case.
19. What could be gathered from these judgments is that basically there must be pleadings and evidence in support of the split multiplier and reasons must be given to apply the split multiplier. It is discernible that there is : 19 : neither pleadings nor evidence in support of the split multiplier as now argued by the learned counsel for the Insurer. The focal point was the driver of the offending vehicle not possessing the valid and effective driving license, the epicenter of dispute being altogether different now a new plea raised by the Insurer at the appellate stage is not maintainable. There is no straight jacket formula for the application of the split multiplier. It depends upon the facts and circumstances of the case. In the absence of concrete foundation laid by the Insurer, no edifice can be built in the appellate stage to seek for the applicability of split multiplier. Hence, we are of the considered opinion that the multiplier of 9 has to be applied considering the age of the deceased. With these observation, we proceed to determine the quantum of compensation.
20. It is discerned that the deceased was earning Rs.18,577/- p.m. With the deductions, monthly income would be Rs.18,272/- as per Ex.P.11, the salary certificate. In terms of Manavalagan's case supra, loss of : 20 : estate has to be worked out taking 1/3rd of the income. The same would work out to Rs.6,090X12X9=6,57,720/-. The claimant is entitled to Rs.40,000/- towards loss of consortium, Rs.15,000/- towards funeral expenses and Rs.1,92,695/- towards medical expenses. Thus, in all the claimant shall be entitled to total compensation of Rs.9,10,415/- as against Rs.2,07,695/- awarded by the Tribunal which shall carry interest at the rate of 6% p.a. from the date of petition till realization.
Accordingly, we proceed to pass the following:
ORDER
i) The appeal filed by the appellant is allowed in part.
ii) The judgment and award passed by the Tribunal in MVC No.234/2009 is modified and enhanced to Rs.9,10,415/- as against Rs.2,07,695/- with interest at the rate of 6% p.a. from the date of petition till the realization.
iii) Insurer-appellant in M.F.A.No.25829/2011 shall be liable to satisfy the award.: 21 :
iv) The terms regarding deposit of the awarded amount and release of the amount awarded shall remain unaltered.
Draw modified award accordingly.
(Sd/-) JUDGE (Sd/-) JUDGE Hnm/jm/-